Malupo v Police - [2018] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-048

[2018] NZHC 801

BETWEEN
DEREK MALUPO

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 April 2018

Counsel:

V Heather for Appellant I Ko for Respondent

Judgment:

26 April 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 26 April 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Kayes Fletcher Walker Limited, Manukau

MALUPO v POLICE [2018] NZHC 801 [26 April 2018]

[1] Mr Malupo was sentenced to six months’ community detention and 18 months’ intensive supervision in relation to multiple charges, including burglary, possession of an offensive weapon, threatening behaviour, dangerous driving, failing to stop, and ill- treatment of a child. He breached the conditions of his sentence. He was re-sentenced to 27 months’ imprisonment, taking into account the breaches. He now appeals against that re-sentence as manifestly excessive.

Background

[2]Mr Malupo pleaded guilty to the following matters.

Burglary

[3] On 28 February 2016, Mr Malupo entered a residential home and burgled items from the house, which were in total valued at $3500. The items stolen included an Xbox console, Toshiba laptop, Microsoft laptop, and a small digital tablet in an Adidas bag. The victim and his five-year-old son entered the property, and found Mr Malupo inside the house. Mr Malupo was chased by the victim until he was apprehended by members of the public.

Threatening behaviour

[4] On 26 March 2016, Mr Malupo argued with his long-term partner and, whilst his partner was sitting outside on a deck by their garage, Mr Malupo hit the garage above the victim’s head with a shovel.

Failing to stop, driving in a dangerous manner, ill-treatment of a child, possession of an offensive weapon

[5] On 24 June 2016, Mr Malupo was driving a car with his partner and their four- year-old son. The son was sitting on his mother’s lap in the front passenger seat of the car, and was unrestrained. A Police Officer attempted to pull the car over by activating the red and blue lights of his vehicle, but Mr Malupo drove away at speeds of 80 km/h in 50 km/h zones. At one stage, he crossed the centre line onto the wrong side of the road because he could not control his vehicle at the speed he was travelling. Mr Malupo eventually stopped and ran from his car. The Police found the child

standing in the front passenger’s footwell of the car, and also found a machete in the driver’s side footwell.

[6]Mr Malupo also failed to answer District Court bail on two occasions.

Judge Blackie’s sentencing indication

[7] Judge Blackie gave a starting point of two and a half years’ imprisonment, “bearing in mind” Mr Malupo’s previous convictions, the fact he is a recidivist burglar, and that the burglary was serious, based on the value of the items stolen and the confrontation with the occupants. He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Malupo v Police

Details

AGLC: Malupo v Police [2018] NZHC 801
Case: [2018] NZHC 801
Decision Date: 26 April 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Derek Malupo appealed against his re-sentence of 27 months’ imprisonment for multiple charges, including burglary, possession of an offensive weapon, threatening behaviour, dangerous driving, failing to stop, and ill-treatment of a child. Mr. Malupo argued that the re-sentence was manifestly excessive. The court had to decide if the re-sentence was appropriate under the Sentencing Act 2002, particularly in light of the initial community-based sentence and the breaches that led to the re-sentencing.

The court considered the principles of re-sentencing outlined in R v Morgan and Hough v Police, which emphasised that the re-sentence must be proportionate to the original sentence, should not penalise the breach itself, and must consider the unserved portion of the original sentence. The court noted that the starting point of 2.5 years for the initial charges was within the appropriate range, but found that the re-sentence did not adequately account for the unserved portion of the original sentence, and did not sufficiently consider proportionality and the discount for guilty pleas. The court found that the re-sentence of 27 months was about 17-23 per cent higher than what it considered appropriate, and thus manifestly excessive.

The court allowed the appeal, set aside the re-sentence of 27 months, and replaced it with a sentence of 23 months. The court directed that Corrections consider the time already served by Mr. Malupo.

Orders